If there is one thing that employers have little control over in the work place, it is long-term sickness. Because short-term absence that leads to long-term absence, creates the problem of what to do with the sick employee’s position. Hold it open and ask colleagues to cover for absence, leading to loss of productivity and output, or ‘let the employee go’, because of capability reasons? There is always the possibility that the employee’s sickness turns out to be an ‘impairment’ that means that they are disabled and protected under the Equality Act 2010.
We have come across this case featuring the above issues around an employee at a school academy trust. Ms O’Brien was employed as the Director of Learning ICT for Bolton St Catherine’s Academy. Following a year of sickness absence for stress, which had been occasioned when one of the Academy’s students assaulted her, the Academy dismissed Ms O’Brien on the grounds of medical incapacity.
On appeal, the appeal panel found that her fit to work note from her GP, which stated that she was now fit to return to work, contradicted a letter from her psychologist stating she would recover following treatment. Owing to the unclear evidence presented to them, the panel rejected her appeal against dismissal.
A little bit longer – off work
In the first instance, the Employment Tribunal (ET) came to the decision that Ms O’Brien had been discriminated against and unfairly dismissed. On appeal to the Employment Appeal Tribunal (EAT) the tribunal’s decision was overturned and instead the EAT judge found in the Academy’s favour on all substantive grounds but instead of dismissing the claim, remitted it to be re-heard by a fresh tribunal.
The case continued to the Court of Appeal (CoA) who held that her dismissal was both unfair and amounted to discrimination arising from disability. The case has now been remitted for remedy hearing, pending settlement. The reasoning for the decision? Put simply, employer’s must wait a ‘little longer’ when dealing with long-term sickness dismissals. If you think this phrase is ambiguous and unhelpful, so do we!
We regularly advise employers on long-term sickness absences and the salient points we pass on for employers to be aware of are:
- Always obtain up to date medical evidence, if a report is more than one month old, it may no longer be relevant and not present a current statement of an employee’s symptoms and prospects of recovery. Not obtaining relevant and up to date medical and occupational evidence may be regarded as an omission of the employer’s duty to discover the true medical position.
- Give due consideration to any and all medical evidence, even new medical evidence, whenever it is submitted. Assess its relevance with the employee (in consultation with the employee). Otherwise you may be criticised for making decisions about the employee’s capability without reference to their comments on the medical report.
- Do not disregard medical evidence, even when it is unsatisfactory or inconclusive about the prospects of e.g. a sustained return to work. Instead, consider whether it would be appropriate to make further enquiries through the medical advisers available – err on the side of caution and make further enquiries!
- Ensure that you are in possession of all relevant facts about the employee’s medical position and occupational capability, including ironing out contradictions in medical reports is better than making decisions on information which is patently poor or inadequate;
- Compile evidence to demonstrate why the potential dismissal on grounds of incapability is necessary at that point. This may seem obvious, but no justifiable decision can be taken without a properly thought out decision making process, taking into account the capability for the job, the impact of future long term absence on other colleagues and productivity, the prospects of any phased and then sustained returned to work.
- Remember that employers are entitled to make their own decisions and conclusions, which are supported by clear facts and a logical and reasonable analysis of those facts. The employee’s input will be highly relevant and they may acknowledge that any return or phased return to work will not be possible, because it will exacerbate their symptoms or their symptoms will return and they will be off for a long period again.
- If you have someone whose condition is likely to be regarded as a disability, if you do not consider reasonable adjustments to their working conditions, including a different job, lighter duties or phased return to work, then you will be facing the risk of an expensive disability discrimination claim for failure to consider and (if possible) make reasonable adjustments.
- Consider whether it would be reasonable to wait a ‘little longer’ before dismissing the employee. Particularly where the medical/occupational evidence and the employee’s own ‘take’ on their capability for work indicates the individual is fit to return to work fully in the near future or can start to return on a phased basis in the short-term future. You may be a disheartened by this legal authority around the need to wait a ‘little longer’ before dismissing long-term sick employees. Particularly since there is no definition of what is a ‘little longer’!
- However, consider if the decision you are about to make to terminate someone’s employment on grounds of incapability will be legally and factually reasonable when challenged at an employment tribunal. Take advice from us on any aspects that you are unsure about. We can help you focus on the key issues and evaluate the medical evidence to see whether it needs clarifying, before you rely on it. We can help you with the decision making process through eyes of a reasonable employer, which is the way in which an employment tribunal will view the matter.
- Of some comfort from the above case is the opinion offered by one of the judges at the Court of Appeal who dissented from the other two appeal judges. He stated “It could perfectly properly be concluded, some 17 months on since the appellant first went off sick, that enough was enough here”. It should be noted by these comments that employers are not expected to wait forever for employees to recover and return.
O’Brien v Bolton St Catherine’s Academy.
If you would like to further discuss any of the information included in this article, please contact Nick Hobden on 01322 623707 or by emailing firstname.lastname@example.org